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Is LSO discipline catching up with the times?

I’m frequently asked how I think the legal profession in Canada is doing in being more thoughtful, compassionate and constructive around issues of mental health and addictions among its members.

It is not unusual to hear lawyers state that their law societies don’t care about lawyers. It’s a good reason, they surmise, to avoid at all cost having that regulator become aware of their struggles. And so, when I’m asked about the profession’s progress in this area, my go-to metaphorical response is to allude to a mega-tanker out on the ocean, making a deliberate but labouring turn.

In other words, the direction is changing but very, very slowly. But there may be progress when it comes to law societies and their discipline processes. Those proceedings are, indeed, designed primarily with the protection of the public in mind, borne of those societies’ explicit legislative mandates. The administration of justice must be held in high repute by citizens in order for it to remain trusted and relied upon by the public. That said, a sophisticated, thoughtful legal regulator is one that must also respect the difference between wilful, malevolent action and inadvertent, unintentional behaviour.

It can be well analogized to the criminal law standard that requires both mens rea (a guilty mind) and actus reus (a guilty act). Those who act improperly but who did not do so intentionally are sometimes found not criminally responsible and those people are required to receive treatment so as to ensure that the act will not occur again.

Professionally speaking, it is a matter of capacity, not discipline.

Larry Banack, a Law Society of Ontario bencher, stated as much in the 2013 case of Law Society of Upper Canada v. Vader, involving a paralegal who failed to respond to law society correspondence, a condition that occurs a great deal with people suffering from depression and/or anxiety. Banack dismissed the complaint against Vader.

In the case, Banack stated, “A discipline process leading to the penalty phase consideration of specific and general deterrence is wholly inapplicable when the inappropriate conduct is caused by mental illness.” He stated that, “in reaching this conclusion, I have considered that if some other recognized medical condition, such as a broken back, paralysis or coma, interfered or prevented a licensee from fulfilling an obligation to the law society, I am satisfied that such situation would be considered in determining whether the licensee had engaged in professional misconduct for failure to co-operate, respond or provide information to the law society.

“The existence of mental illness should be treated no differently.”

This type of sensitivity and insight is relatively new coming from a law society. But it’s taking hold. In its 2016 Mental Health Strategy Task Force report, the Law Society of Ontario included a section on regulation and discipline that included the stated intention to “consider proactive steps to address repeated licensee failure to respond to Law Society correspondence, where mental illness or addictions issues are suspected.”

In B.C., the law society’s Mental Health Task force included a plan to “develop an integrated mental health review concerning regulatory approaches to discipline and admissions.” And in Nova Scotia, the barristers society has initiated a voluntary Fitness To Practice program, which provides a diversionary process, where appropriate, for lawyers with a capacity-related conduct issue. Where the issue is capacity and not discipline, a more appropriate process is offered. All of these are heartening signs of progress.

Further evidence of this evolution is demonstrated in two other very recent Ontario discipline cases. This past June, in Law Society of Ontario v. Burtt, the complaint against Jeffrey Gordon AlexanderBurtt was dismissed because the law society was found to have failed in its duty to accommodate Burtt’s disability under the Ontario Human Rights Code. Like Vader, he had not been able to respond to the law society due to the impact of a depressive condition that was well documented.

A month later, in July, in the case of Law Society of Ontario v. Yantha, a case about overbilling, the tribunal took Darwin AnthonyYantha’s substance use and depression diagnosis into account in permitting him to resign instead of having his licence revoked. The tribunal accepted that “the Licensee’s depression and alcoholism made him reckless” and that “his depression and alcoholism are causally connected to the misconduct we found.” But, it found that the public interest required that he not be permitted to continue to practise because he “might well misconduct himself in the same way again, since we saw no evidence of his full acceptance of the seriousness of his condition and the recommended treatment.”

Compassion tempered by prudence.

We are all witnessing the discipline process for lawyers make a turn firmly into the 21st century. The times are changing for the better.

Doron Gold is a registered social worker who is also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He’s available at dorongold.com.